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Extraterritorial Jurisdiction May be a Solution to Combat Trophy Hunting

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Ryan Lee


Trophy hunting is undoubtedly a global issue that threatens the welfare and extinction of many endangered species. And while it is easy to place blame on export countries as they are responsible for the enforcement of hunting quotas, restricting which species are hunted and which methods of killing are allowed, the trophies’ destination countries also play a major part by stoking demand for this practice.[1]


CITES (The Convention on the International Trade in Endangered Species of Wild Fauna and Flora), governs, and in some cases prevents, the international trade in products from endangered wildlife, but international regulations and treaties between nations often fail to sustain effective animal welfare standards. Moreover, a number of states use their respective territorial authority to supersede international regulations such as CITES in order to attract foreign investment, often at the expense of endangered animals.[2]


Instead of proposing that nations seek agreement through international treaties, which will likely implement low and mostly ineffective animal welfare standards, extraterritorial jurisdiction may be the more promising avenue for animal law to overcome regulatory gaps and making animal issues more visible on the international level.


What is trophy hunting?

Trophy hunting is the killing of an animal for sport or pleasure in order to display part or all of its body as a trophy. American trophy hunters only importe over 126,000 wildlife trophies per year on average.[3] Contrary to some myths, trophy hunting does not benefit wildlife conservation. Hunting enthusiasts often claim the money generated through hunting fees goes towards funding wildlife conservation agencies, and that hunters can help control wildlife populations by removing problem or redundant individuals. However, little of the money generated through trophy hunting goes back into conservation.[4]


Additionally, trophy hunting does not benefit the local economy to any significant degree. A 2017 study concluded that “the current total economic contribution of trophy hunters from their hunting-related, and non-hunting related, tourism is about 0.03% of GDP.”[5] In contrast, a study found a live elephant may be worth as much as $1.6m over its lifetime through income from photographic tourism – many times the fee typically paid by a trophy hunter to shoot an elephant.[6]


Why an international treaty solution may not be as effective as it appears.

There is the argument that states must seek to work towards an international treaty to prohibit hunters from killing animals that belong to endangered or threatened species. Such a theoretically ideal treaty would ensure that all states’ views, preferences, and interests were taken into account, and it would be carried by their willingness to cooperate. However, the difficulty of coming to a broad agreement is underestimated, and failure to reach agreement is often the norm, rather than the exception. Even in the specific context of protecting endangered species, states strongly disagree over the optimal regulatory measures needed to tackle trophy hunting.[7]


For states that claim reliance on the income from wildlife trade and trophy hunting, the apparent solution for them is for animal production to be unregulated, opposing the view of states that would rather regulate. In South Africa for example, which has some 2,000 wild lions, canned lion hunting has grown into a more than $100 million industry, with more than 200 facilities raising about 6,000 of the big cats for easy killing.[8]States such as these are unlikely to prohibit or sufficiently regulate practices that generate considerable income revenue for them. These considerations show that international treaties are a less feasible policy option than they might appear at surface level, and may not even be desirable, as international agreements tend to cap law at the lowest common denominator.[9]


What is an extraterritorial jurisdictional approach?

Extraterritorial jurisdiction, for the purposes of this argument, refers to a state’s authority to prescribe law over its nationals, property, or events on foreign territory.[10] A major incentive to utilise extraterritorial jurisdiction is that the various forms of overlapping and concurring laws will create a jurisdictional net across the globe. Firstly, the permissibility of multiple jurisdictional assertions that overlap will likely decrease the likelihood of regulatory gaps in animal law. Secondly, extraterritorial jurisdiction provides opportunity for political deliberation and nuanced negotiation for adapting insufficient laws, and leaves space for innovation and competition. The legal pluralism that stems from extraterritorial jurisdiction makes readily apparent its nature as a dynamic tool that could help improve animal welfare in an age of globalisation and contrasting legislation.[11]


A state may exercise direct extraterritorial jurisdiction in regulating their nationals abroad, specifically by directly prohibiting the hunting of animals on foreign territory. It can do so by invoking such principles of international law as the active personality.[12] A state can use direct extraterritorial jurisdiction to prohibit its nationals from hunting certain or all animals if these acts of hunting are also prohibited on domestic territory. As such, states can prohibit its nationals from hunting endangered animals abroad irrespective of whether foreign countries prohibit, or even regulate these acts. As such, this principle is a highly effective means to close regulatory gaps that surround animal law.

By adopting the international doctrine of jurisdiction in tackling animal law, we could abandon the territorial conception of jurisdiction that binds individuals to it in an exclusive manner and fences off other states’ policy aims. The territorial primacy a state may enjoy offers ample room for regulation promoting mistreatment of endangered animals. With the development of the modern law of jurisdiction, states can choose among viable jurisdictional options to protect animals abroad.[13]


It should be noted that extraterritorial jurisdiction runs the risk of being used to oppress or discriminate others. Some argue that the hunting-antihunting debate comes down to Western environmentalists attempting to dictate their agenda to Africa—almost a form of neo-colonialism. The question often posed is: “who gives anybody the right, sitting in another continent, to preach to us how we should manage our wildlife?”[14] But if extraterritorial jurisdiction is properly applied and strengthened with the necessary safety valves, it can be a powerful tool to advance our ongoing campaign for interspecies justice. This principle can also be applied to address other forms of animal endangerment such as wildlife trafficking.



 

[1] Born Free, Trophy Hunting: What’s the Current Legislation? (2021) <https://www.bornfree.org.uk/articles/trophy-hunting-legislation> accessed 17 Feb 2021. [2] C. Blattner, Defending Checks and Balances in EU Member States: Trophy Hunting, the Race to the Bottom, and the Law of Jurisdiction (2020) Studies in Global Animal Law. [3] The Humane Society of the United States, Banning Trophy Hunting (2021) <https://www.humanesociety.org/all-our-fights/banning-trophy-hunting> accessed 17 Feb 2021. [4] Born Free, 10 Facts About Trophy Hunting (2021) <https://www.bornfree.org.uk/articles/trophy-hunting-facts#:~:text=Trophy%20hunting%20is%20the%20killing,its%20body%20as%20a%20trophy.&text=According%20to%20the%20Convention%20on,world%20between%202008%20and%202017> accessed 18 Feb 2021. [5] C. Murray, The Lion’s Share? On the Economic Benefits of Trophy Hunting (2017) Humane Society International. [6] iworry, Dead or Alive? Valuing an Elephant (2014) <http://iworry.org/wp-content/uploads/2013/09/Dead-or-Alive-Final-LR.pdf> accessed 19 Feb 2021. [7] T. Guzman, Is International Antitrust Possible? (1998) New York University Law Review, 73, at 1514-1515. [8] M. Paterniti, Trophy Hunting: Should We Kill Animals to Save Them? (Oct 2017) National Geographic Magazine <https://www.nationalgeographic.com/magazine/article/trophy-hunting-killing-saving-animals> accessed 20 Feb 2021. [9] Ibid n (2). [10] W. Meng, Extraterritoriale Jurisdiktion im öffentlichen Wirtschaftsrecht (1994) Springer, at 4. [11] Ibid n (2). [12] Ibid n (10) at 53. [13] Ibid n (2). [14] Ibid n (8).

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